NHTSA tackles to-do list as new president arrives

U.S. auto safety regulators picked up the pace this month, with NHTSA hastening efforts to finish projects, finalize rules and tie up loose ends in anticipation of President Joe Biden taking office.

Since early January, the agency has issued long-awaited revisions to modernize certain federal safety standards for automated vehicles, proposed updates to its new-vehicle evaluation program, expanded a voluntary data-sharing platform on AV testing, established an initiative to address safety risks related to electric vehicle batteries and settled regulatory compliance issues with automakers.

That flurry of activity — common at the end of a presidential administration — tends to be heightened when there's a change in party, according to Jackie Glassman, a partner at law firm King & Spalding who was NHTSA's chief counsel and acting administrator under President George W. Bush.

"From Clinton to Bush, from Bush to Obama, from Obama to Trump, you would see a lot of activity near the end of the administration, trying to finalize open matters or get new matters started before the Inauguration Day," she told Automotive News.

Biden, a Democrat, was sworn in as the 46th president of the U.S. on Wednesday, Jan. 20. One of the president's first-day moves was to issue a memo that pauses midnight regulations, or late rules that the Trump administration tried to finalize in its last days, giving the new administration a chance to review them before renewing any regulatory activity.

Under Republican President Donald Trump, NHTSA sent clear signals to the auto industry through its words and actions that it thought the best approach to regulating AVs was "hands off" and that the agency didn't intend to step in with regulations controlling how that technology should be developed, several auto safety experts said.
"The new administration is going to have a lot of opportunities to review and put their own policy spin on these matters going forward," Glassman said.

Glassman said some of the recent actions by NHTSA are simply "good government" that has been in the queue for a long time.

"Some of it is trying to clean up, finish up and put proposals or regulatory analyses out into the public, opening it for public comment, in order to put their policy spin on the opening salvo," she explained.

In a statement to Automotive News, NHTSA, which is part of the Department of Transportation, said it was "pleased to have had a productive period" over the last month or so.

"Numerous rulemakings and enforcement actions that were in the pipeline for many months or even years — subject to research or investigation, scientific study, public review and comment — have reached fruition," the agency said. "These decisions will greatly benefit all Americans by protecting road safety while also fostering innovation and new ideas."

Jason Levine of the Center for Auto Safety argues that regulatory certainty, however, is "created by predictable and transparent actions on which all parties can rely."

"Midnight legal reinterpretations, cynical requests for comment and final rules ripe for withdrawal will lead to neither regulations nor certainty," said Levine, who is executive director of the consumer advocacy group.

While the activity level is normal for the agency during the end of a presidential administration, the type of activity this time is "abnormal," according to William Wallace, manager of safety policy at Consumer Reports.

"We're seeing a lot of amendments to the safety standards, and we're seeing deregulatory measures," he said. "We haven't seen from the outgoing administration very much at all in the way of new safety standards, and that's absolutely abnormal and something that we hope is going to change soon because it's too important of a component of NHTSA's work for it to lay dormant."

King & Spalding's Glassman said the overarching trend in the Trump administration was to remove what it perceived as regulatory barriers to innovation that didn't pursue, or weren't necessary for, safety.

That deregulatory, hands-off approach has been evident as it relates to automated vehicles especially, Wallace said — a strategy Consumer Reports and others in the auto safety space have opposed.

"There are times when you want to take a look at the rules on the books and make sure that they're still serving safety in the way that they are supposed to, and then there are times when you're going to need to set new rules of the road," he said.

"There are times when you're going to need to set strong standards so the industry has clear signals and so new hazards don't emerge that put consumers at risk, put drivers at risk, on the road."

Wallace, who acknowledges the agency is "chronically underfunded and needs more resources," says he expects the Biden administration to recognize setting new standards as critically important.

"If you look back at NHTSA's history, it's the standards that have saved the most lives," he said.

James Owens, NHTSA's deputy administrator under Trump, said that while the agency conducts research to evaluate new technologies, establishes regulatory minimum safety standards when appropriate and investigates potential defects, it's up to the manufacturers to self-certify that their vehicles or equipment meet all applicable regulatory standards before those products are sold.

"To put it simply, regulations must necessarily follow technological maturity," Owens said in a paper posted by the agency this month.

NHTSA said it was not currently in a position to establish regulatory standards for emerging technologies and has not issued new performance standards for automated driving systems, specifically, because "this technology is still far from its endpoint."

"To regulate technologies before they are market-ready would stifle their development and, thus, their lifesaving potential," Owens argued. "Worse still, regulating without a full understanding of the technology could risk regulating the wrong aspects of performance and potentially lead to unexpected negative safety consequences in other ways."

But in the case of automated driving technology, David Zuby, chief research officer of the Insurance Institute for Highway Safety, said NHTSA isn't taking advantage of its authority.

"It assumes that the people developing automated driving technology are putting safety first," Zuby said.

"I don't think there is any evidence to support that idea."

Ariel Wolf, counsel to the Self-Driving Coalition — a group dedicated to promoting the benefits of AVs and whose members include Ford, Volvo, Argo AI and Nuro, among other startups and stakeholders — said NHTSA's recent actions inform the industry that AVs remain an important part of the conversation for transportation and infrastructure in the years to come.

But capturing the safety and mobility benefits and deploying AVs in the safest way possible requires a multifaceted approach, he said.

"We'll see what happens with those initiatives, but there's certainly a lot to build upon and to have some continuity in the [Biden] administration on all this," Wolf said. "It's not binary — one versus the other or regulation versus deregulation. There's just a lot to do and a number of ways to do it."